Originalism and the Shakespeare Test

Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

Here’s what I call the Shakespeare test. I substitute “Shakespeare play” and related words for the “Constitution.” The point is simply to judge whether, and to what extent, a proposed method of reading the Constitution differs from what we’d use when reading something more familiar. (It doesn’t need to be a Shakespeare play. It could be a baseball rulebook, or a math textbook, or the newspaper. Whatever.) Let’s try it with Levy’s paragraph:

Textualism says that when interpreting a Shakespeare play, readers should confine themselves to the words of the Shakespeare play.

Well, I’m unsure I would use the word “confine.” But, yeah, if we’re reading a Shakespeare play, then of course it’s the text of the Shakespeare play that we’re trying to interpret. It’s not really confining. It would be odd to try to interpret Henry V by, say, exegeting passages from The Crucible.

Originalism says that if the words [of a Shakespeare play] are at all unclear, then readers need to consult historical sources to determine their meaning at the time it was published . . .

Well, yeah, pretty much. At least if we’re interested in understanding what Shakespeare wrote in the play.

and the correct application of Shakespeare’s text to new situations should clearly follow.

Well, here Levy sets up a straw man. He repeats it a bit later in his column as well: “Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions.”

As best I know, no sober textualist or originalist ever said application should “clearly follow” from application of the methods. Indeed, those I’ve read typically underscored that application isn’t necessarily clear or easy. But back to the Shakespeare test, there is, to be sure, a lot of wisdom to be chewed on in Shakespeare plays. The application of that wisdom to novel circumstances in one’s life today, however, is not necessarily clear. Indeed, readers can argue over what this or that passage might mean today. I don’t see that as a barrier, however, to trying to understand what Shakespeare actually wrote to trying to apply it to one’s life today.

The upshot, however, is, even on Levy’s telling, “textualism” and “originalism,” applied to a Shakespeare play, is just what normal people do to read and understand a text.

Levy then gives the coup-de-grace to Scalia, arguing that “textualism is actually self-undermining” because “Nowhere doe the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation.”

Of course we don’t expect Shakespeare to instruct us on how to read Shakespeare. But that’s not really a problem when approaching his plays. Just because Shakespeare did not instruct us on how to read his plays does not entail that there is some problem or puzzle with trying to read and understand what he wrote, as opposed to what I or someone else would have written.

Now I’ve picked on Shakespeare, but I don’t mean to imply that reading and understanding Shakespeare is always easy, or that understanding Shakespeare incisively doesn’t take study, insight, and diligence. The point is that what the experienced, incisive reader does is not a mystery. It’s just what ordinary readers do, except more. That a text includes specialized terms or technical phrases doesn’t affect the process of trying to read it accurately. It just takes more work on the reader’s part to try to understand what is written. But the goal is always the same: to understand what is written. If one doesn’t like what is written, then the appropriate response is to write something different, not to pretend that it’s “interpretation” to read what’s not there.

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

“because “Nowhere doe the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation.”

Of course, this is amusing, because the Founders hadn’t envisioned any other methods or theories other than plain meaning. And when anti-Federalists tried to warn them of other ways of looking at the Power to Tax Clause, they laughed it off as ridiculous. Except that people actually believe those exact ridiculous things today. Yet, it doesn’t seem to bother lawyers today that Madison thought they were being ridiculous, because “hey, what did that guy know about the Constitution that I don’t?”

1. Is the clause clear? If not, why?
2. Is one interpretation of the clause more awkward than another? Why?
3. What was the known intention of the clause? What was it there to fix or clarify?
4. What laws were made or not made based on this clause in the immediate years that followed?
5. What did the Founders say about the clause in debates and publicly?
6. What did the critics and anti-federalists say about it?
7. Would the states have likely signed the Constitution with this understanding?
8. Was the earliest meaning as ruled upon by SCOTUS? Was there a change at any time?
9. Which interpretation of the clause most supports limited government federalism?
10. Which interpretation of the clause most supports the natural rights of the people?

The only problem with this is that not all of the constitution was written by “the Founders” and that on simple principles of legislation, later acts trump earlier acts. So, for example, it very much remains to be seen whether the Radical Republican ratifiers of the Fourteenth Amendment should be constrained to an interpretation consistent with “limited government federalism” when one of their central purposes (as evidenced by the legislative history) was to undermine the states’ power for various reasons. Similarly with the Progressive change to how we choose senators, the Progressive introduction of the income tax, the Vietnam era reduction of the voting age to enfranchise those who fight, etc. Or, put differently, there are *many* Founders, and originalism requires that we identify *which* origin we’re talking about.

Yep, there are, in this sense, various *origins*. This fact should not however diminish the importance of the central thesis of originalism, i.e. that one should seeking the original meaning (be that textually, intent oriented, etc.) of the constitution, or in this case, the Amendment in question.

Also, I would not be quite so quick to give precedence to the Radical Republicans take on the 14th Amendment as the legislative History would indicate that had the Radicals had their way, the 14th Amendment would not have been passed. Senator John Bingham, a more moderate Republican, appears to have had his way with the thing. (I think much to the good of it, BTW).

Still, in Mr. Ashman’s list, I think there is far more value in the 2nd part of his item #3: “What was it there to fix or clarify?” this is an often overlooked perspective on determining the meaning of the clause / amendment. As an example with the 14th and birthright citizenship, “all persons born….” to the reading of many, and supported by the history (Civil War, Emancipation, subsequent denial of rights to freedmen, etc) it would appear that this clause was expressly intended to assure that the Freedmen would not be denied the benefits of US citizenship. It has, regrettably, come to mean much more.

“Levy then gives the coup-de-grace to Scalia, arguing that “textualism is actually self-undermining” because “Nowhere doe the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation.”

With all due respect for Shakespeare, one can know through both Faith and reason, that one cannot deny the spirit of a law, without denying the letter of a law, and thus the essence of the law.

“There are three rules of language applied by the courts to assist them in interpreting statutes. The rules of language are referred to as intrinsic aids or internal aids. The three rules of languages are:

· And Noscitur a sociis (a word is known by the company it keeps and words must be read in context).”

If we were instead to consider Originalism and The Dr. Seuss Test, whether we have one fish, or two fish, the principle of proportionality still remains a “general principle in law”.

This does not change the fact that “whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design.
I respectfully dissent.” – Justice Elena Kagan. Yates v. United States

I like the Shakespeare test except that the bard famously coined so many words. Determining the meaning of “swagger,” say, by plain public use does us no good if it’s a neologism. I know of no such words in the founding documents, but that hardly precludes the idea that they took some word in regular use and gave it a new nuanced or technical meaning (or perhaps revived some long out of use archaic meaning). Thus, original public meaning wouldn’t cut it if the word wasn’t in regular use.

And just in case anyone missed these two essays from McGinnis and Rappaport on the Constitution as “Language of the Law”.
These may be helpful in resolving some of the difficulties involved in constitutional interpretation. Much that we actually argue about is not common language but rather the artful language of the Law – as such the indeterminacy of that language is much overblown.
Here are the links:

by Mark PulliamOriginalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from…

by Adam TateJ.M. Opal’s new book interprets the history of the southern frontier from the late colonial period through Andrew Jackson’s presidency as a tale of constant violence and brutal grasping for…

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